IV. REVIEW OF LAWS, IMPLEMENTATION OF TREATIES AND OTHER INTERNATIONAL
INSTRUMENTS OF HUMAN RIGHTS

National Human Rights Comission, ANNUAL REPORT 1996-97

(A) TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987

4.1 The Terrorist and Disruptive Activities (Prevention) Act, 1987, the renewal of which this Commission opposed, was not revived when its life expired on 23 May 1995. Yet the problem continued that many thousands of undertrials remained in jail in various States, as did the danger that they would be forgotten once the Act lapsed. On 30 June 1995, the number of such undertrials stood at 6060. The Commission accordingly submitted the information at its disposal to the Supreme Court which, on 27 February 1996, gave detailed directions on how to deal with questions of bail in respect of TADA cases. Pursuant to these directions, the number of TADA undertrials in jail had been reduced to 1502 by 1 January 1997. The Commission had remained in touch with the competent authorities at the Centre and in the States in respect of the TADA undertrials, with a view to ensuring that the various instructions of the Supreme Court in regard to them are acted upon and that their fate is not forgotten simply because the Act has ceased to exist.

(B) ARMED FORCES (SPECIAL POWERS) ACT, 1958

4.2 The Commission first received a representation against the Armed Forces (Special Powers) Act, 1958 when it visited Nagaland in April 1995. It subsequently learnt that there were proceedings pending before the Supreme Court questioning the constitutional validity of the Act in Writ Petition Nos. 5328 of 1980, 550 of 1982 and 9229 and 9230 of 1982. Therefore, the attention of the Commission was drawn to the concerns expressed by a number of other public and civil liberties groups in regard to the provisions of the Act, the South Asian Human Rights Documentation Centre, for instance, even sending to the Commission an analysis that it had made of the Act.

4.3 In essence, the representations received against the Act assert that its powers are too vast and sweeping and pose a grave threat to the fundamental rights and liberties of the citizenry of the areas covered by the Act. It is argued, for instance, that the powers under Section 3 to declare any area to be a "disturbed area" are too wide, unguided and unanalyzed. It is further argued that Section 4 and 5 are so arbitrary and excessive as to empower the armed forces even to take away the life of a citizen by firing upon him on the mere ground, inter alia, that he is "acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons," or "carrying things capable of being used as weapons." This power, it is asserted, can even be exercised by a non-commissioned officer if he "is of the opinion that it is necessary to do so for the maintenance of public order." The representations received by the Commission have urged that these powers are susceptible to grave misuse, that they constitute an unreasonable and oppressive procedure and are, in themselves, unconstitutional. The representations refer to a number of instances in which these powers were allegedly abused.

4.4 In the light of these circumstances, the Commission has taken a decision to seek to be impleaded in the proceedings before the Supreme Court and to assist the Court by placing the Commission’s view before it on this issue.

4.5 As it would be helpful to have a free and frank exchange of views with eminent jurists, senior officers of the armed forces, the ministries and State Governments concerned and of others who can shed light on the constitutional and legal matters involved, the Commission scheduled a Session for a discussion on this subject on 13 May, 1997.